Lose That Lawyer

Do defendants in Georgia have any right at all to competent representation?

During his five years as a justice of the Georgia Supreme Court, four of them as chief justice, Norman S. Fletcher says he voted to affirm “countless” murder convictions and a significant number of death sentences. But today Judge Fletcher is having second thoughts about one man he voted to send to the executioner in June 1993.

Curtis Osborne is scheduled to be put to death by the state of Georgia tomorrow night for a gruesome double murder he committed in 1990. There is no question that Osborne is guilty. But Fletcher says neither Osborne’s jury nor the Georgia Supreme Court knew the full truth about his history at the time they made their decisions. Most importantly, he says, they didn’t know that Osborne’s lawyer was a racist and had never put in the time needed to present his client’s mental problems and abused past, having concluded that, “The little nigger deserves the death penalty.”

On Monday, despite a letter from Fletcher and other testimony, the Georgia parole board rejected without comment Osborne’s appeal to have his sentence commuted to life in prison. This is a monument to the bankruptcy of the constitutional right to be represented by an attorney. The Supreme Court has never explicitly stated what level of competence is required to satisfy the Sixth Amendment’s right to counsel, instead inviting state and local bar associations to come up with their own standards. But the local bars have been notoriously unwilling to challenge the performance of their bad-egg members. This case demonstrates that it’s past time for the high court to wade back in and demand rigorous standards to which lawyers are held accountable. Osborne’s lawyers are filing a series of last-minute appeals in an attempt to save his life.

The lawyer that Georgia assigned to Curtis Osborne, Johnny Mostiler, barely lifted a finger to defend him. Mostiler never hired a psychiatrist to examine evidence that Osborne was a victim of childhood abuse, and was borderline retarded, despite a court-ordered sanity evaluation that had found “indications of depression, paranoia, and suicidal ideation.” He never examined the history of mental illness in Osborne’s family because, he said, he didn’t know how to conduct that kind of investigation. Mostiler called no expert witnesses to testify for his client and didn’t bother to interview the state’s experts before they appeared at trial. And he rejected appointment of a second attorney to help with Osborne’s defense, which the American Bar Association and all serious death penalty litigators say is essential if a capital murder defendant is to receive a fair trial.

And then there is the matter of Mostiler’s alleged racism and how it might have affected his defense of Osborne. The most explosive evidence of racial bias is contained in an affidavit by one Gerald Steven Huey, a client of Mostiler’s. In addition to the quote Judge Fletcher cites, Huey says Mostiler made it clear that he would not be spending much money on Osborne’s defense because “that little nigger deserves the chair.” Huey also charges that Mostiler was offered a plea bargain under which Osborne would have received a life sentence in exchange for a guilty plea, but that the lawyer said he “would never tell Mr. Osborne about it because he deserved to die.”

Huey might not be the most credible witness on the planet. He’s serving a life sentence for murdering and dismembering a drinking pal and didn’t come forward with his claims until 2000, long after Osborne’s trial and appeal. By then, Mostiler was dead and couldn’t defend himself. But Huey isn’t alone in suggesting that Mostiler’s racism might have infected Osborne’s defense. In March 2000, Derrick Middlebrooks, an African-American on trial for selling cocaine, asked the trial court judge to replace Mostiler, saying the lawyer told him that he wouldn’t go to a particular neighborhood “because them niggers would kill him.”

Asked by the trial judge about the comments, Mostiler didn’t deny them. And in a new affidavit filed on Monday, Arlene Evans, who practiced law in the same county as Mostiler, says she also heard him use “racial slurs like ‘nigger.’ ” She recounted one conversation in which, “Mr. Mostiler said he thought young black men were lazy and asked me why I thought that was so.”

Perhaps most importantly, Evans says she has first-hand knowledge of Mostiler’s failure to adequately defend Osborne. Evans was initially assigned to Osborne’s case, after he was charged with murder in 1990. Because she had never tried a death penalty case, she asked the court to appoint co-counsel, and Mostiler was assigned to work alongside her. But over the next several months, Evans said Mostiler “was always too busy to meet with me or me and Mr. Osborne.” Evans says she withdrew from the case in April 1991, eight months after Osborne’s arrest, out of frustration, “Because I did not feel I was qualified to handle a death penalty case, and because I did not believe Mr. Mostiler was prepared to defend Curtis Osborne.” Unfortunately for Osborne, that left him with only Mostiler. Although Evans insists she has spoken out about her former co-counsel before, it is a great pity that her detailed allegations did not surface until Monday.

In his letter to the parole board, Judge Fletcher explains why he did nothing to correct the injustice in Osborne’s representation when the case came to him on appeal in 1993. His “weak response,” he said, was a result of the limited review appellate judges provide: They can address only issues raised and ruled on by a lower court judge. Because of Mostiler’s “grave shortcomings,” the mitigating evidence about his past that might have saved Osborne’s life never got a hearing. One state trial judge considered and rejected a claim that Osborne deserved a new trial because of Mostiler’s ineffective lawyering, but that ruling came before the evidence of Mostiler’s racial views emerged. No court has addressed the evidence that Mostiler’s failure to act on his client’s behalf might have resulted from his racial animosity. Now the only chance for Osborne is that the Georgia Supreme Court or the U.S. Supreme Court will order a lower court to review Mostiler’s track record. It’s a slim one.